National telecom regulators must ignore national laws that preven...

findings of significant market power (SMP) and remedies imposed on SMP operators in the market for voice call termination on individual mobile networks. On the basis of its market analysis, FICORA proposed to designate 4 mobile network operators as having SMP, but to impose all antimonopoly obligations available under national law -- such as interconnection, publishing tariff information and using nondiscriminatory pricing -- on only 3 of them. FICORA intended to subject the 4th operator, Alands Mobiltelefon Ab, to less-restrictive obligations. But the EC said FICORA’s proposed remedies contravened the Communications Framework Decision because they were limited to the termination of voice calls originating on a fixed network in Finland. Because the problem identified by FICORA in the market for voice call termination on individual mobile networks is that several players have SMP regardless of the network on which the terminated traffic originates, the remedies shouldn’t be limited on the basis of the originating network, the EC said. Moreover, it said, the regulator’s remedies are not proportionate or justified under the Framework Decision and discriminate between fixed and mobile telephone networks. Finally, the task force said, the Access Directive guarantees undertakings providing e-communications networks or services the right to negotiate interconnection with and, where applicable, obtain access to or interconnection from other providers of publicly available communications networks. FICORA’s proposed measures deny that right to operators of fixed networks in Finland, the EC said. The panel also faulted FICORA for failing to impose the same remedies on Alands as on the other SMP operators and for not specifying how it would assess the telcos’s cost-accounting procedures. Referring to case law of the European Court of Justice, the EC said, “the primacy of Community law requires any provision of national law which contravenes a Community rule to be disapplied, regardless of whether it was adopted before or after that rule.” The duty to ignore national laws applies not only to courts but also to organs of the state such as telecom regulators, the EC said. The Commission doesn’t have the power to revoke FICORA’s remedies directly but can do so through an infringement procedure, which it said it would do, the European Competitive Telecom Assn. (ECTA) said. ECTA called the EC’s point about a regulator’s responsibility “very significant.” “Regardless of what occurs during an infringement proceeding process, national courts have an obligation to protect parties from a failure of a national administrative body, including a regulator, to apply EC law correctly.” In fact, one attorney said, failing to implement directives properly could leave national regulatory authorities (NRAs) open to claims from parties damaged by their decisions. The task force’s decision also will serve as a precedent for Germany’s NRA, ECTA Managing Dir. Roger Wilson said. “The conditions of supply and demand are the same for mobile terminations everywhere,” Wilson said.